Friday, January 25, 2019

ABIM Class Action Lawsuit Against MOC Amended to Include Racketeering and Unjust Enrichment

On Wednesday, 23 Jan 2019, the class action antitrust lawsuit previously filed against the American Board of Internal Medicine (ABIM) in Pennsylvania federal court was amended to include claims under the RICO Act and state law unjust enrichment claims. From the 50-page amended Complaint:

Finally, this case is about ABIM’s violation of Section 1962(c) of the RICO (Racketeer Influenced and Corrupt Organizations) Act. As detailed below, ABIM has successfully waged a campaign in violation of RICO to deceive the public, including but not limited to hospitals and related entities, insurance companies, medical corporations and other employers, and the media, that MOC, among other things, benefits physicians, patients and the public and constitutes self-regulation by internists. Believing ABIM’s misrepresentations to be true, hospitals and related entities, insurance companies, medical corporations and other employers require internists to participate in MOC in order to obtain hospital consulting and admitting privileges, reimbursement by insurance companies, employment by medical corporations and other employers, malpractice coverage, and other requirements of the practice of medicine.

In addition, the suit claims violations of unjust enrichment laws:

Plaintiffs and members of the Class conferred a benefit on ABIM in the form of the money and property ABIM wrongfully obtained as a result of Plaintiffs and other internists
being de facto forced to pay MOC-related fees, as described in detail above. ABIM has retained these benefits that it acquired from charging Plaintiff and members of the Class inappropriate, unreasonable, and unlawful MOC-related fees. ABIM is aware of and appreciates these benefits. ABIM’s conduct has caused it to be unjustly enriched at the expense of Plaintiffs and the other Class members. As such, it would be unjust to permit retention of these monies by ABIM under the circumstances of this case without the payment of restitution to Plaintiffs and Class members. ABIM should consequently be required to disgorge this unjust enrichment.

The ABIM, along with the ABMS umbrella and other member boards, its associates and affiliates comprise a highly organized profitable self-dealing enterprise. Certainly, when the facts are made known to the public in front of a judge and jury, ABMS MOC, or whatever name their "chief investment officers" give to their Ponzi scheme, will be seen for what it is. A crime against the public.

How much did CEOs Kimball and Cassel funnel into the ABIM Foundation? 100 million with all the gains/losses tallied in their risky roller coaster investment accounts? What for?

The theft of surfeit MOC/certification money propped up this flagship medical board for years with their industrious deceptions and deferred accounting methods. How much did they take in all? What was their hidden mission? Where did all the money really go?

Why do we only get puff and tap dances in response to direct answers? Even hotel managers go onto the blogs to address customer complaints.

How about the executives siphoning funds with those board-approved "kickbacks" from the Foundation and channeling huge MOC profits into obscene executive paychecks for decades? How much?

How much did all the CEOs/CFOs/other executives take for the past 30 years? It must be a staggering number.

No wonder science got hijacked - hitched to the ABIM's political/financial Pogo stick. How much for all those skewed studies and the endless stream of partisan propaganda? Lobbying?

And who all stayed at that luxury condo with the party-machine chauffeurs and bouncers with the zipped-up lips? It still has not been answered in any credible way.

And how did they manage to hire such a huge security brigade to guard their "properties", but never managed to put such huge expenses down on their tax forms - transparently with a clear explanatory note?

Why is it that with any hotel in the world you can freely check-in and freely check-out if you don't like the place; but with the ABIM, not only do they make it so you have to "check-in", they make it so you can never leave!

Today I decided not to recertify with ABIM. Our chief medical officer agreed that NBPAS is a better certifying body and will be accepted for credentialing in our hospital. I am but a small voice. Please join me . I'm sure we will create a ripple that will finally swallow ABIM.

And how about that 'big piggy bank' they call a 'Foundation'. Deceptive campaigns in social engineering, hypocritical ethics on professionalism, healthcare campaigns with unknown/unintended consequences.

Jury members will shake their heads in unison at the dirty ABIM to ABIMF money transfers. The transfers constituted direct deposits into hedge funds/holding companies and Cayman Island tax havens.

Don’t get excited. Senate confirmed 40+ judges nominated by Drumpf/Heritage. SCOTUS owned by RW. They will stand wit “corporation” against “little people”. Physicians are employees, who make too much money, & RWNJs believe physician pay is the reason for rising “healthcare” cost. And the American people want MOC!!! They want reassurance that physicians are as smart as they think they are! I am now retired because of MOC even though there is a critical need for experienced, smart psychiatrists. We are in a new age now, kleptocracy.

I am a "Board-Certified internist". I have been in practice for 20 years, 15 of which have been in private practice. In all my years of practicing medicine, I have NEVER had a patient ask me if I was "Board-Certified". Do you honestly think my patients care if I participate in "Maintenance of Certification". I'm so grateful for physicians like Dr. Wes that are just as passionate about this topic as I am. Getting my initial "Board-Certification" had sucked the life out of me. It pulled me away from my family (time i will never get back), it set me months behind on EHR charting, it made me practice medicine in fear of losing privileges with participating health insurance carriers, and the list goes on. This whole topic needs to become more viral among internist, and unless we all stand together, nothing is going to change. If I could practice medicine without the fear and stress of the MOC program, I truly feel that I would be a better doctor, husband, and father.

I am a Gynecologist and I cannot WAIT to take on ABOG. The testing is ridiculous and irrelevant to my practice. And very expensive. The insulting experience of going to a seedy testing center, having my palm vein scanned multiple times, and taking a test that I had to spend precious hours studying for was annoying at best, and enraging at worst.Deborah Wilson MD

I've heard stories about the ABIM and the rather generous sums the leaders pay themselves. In the anesthesiology board, all board members are volunteers and have other full time jobs, with the Board being nothing other than 'extra work' that looks good on an academic CV or that gives you a sense of doing something worthwhile for the profession. Nominal daily stipends are paid, that's it. I hear the ABIM pays its physician leaders rather lavishly and it's their full-time job to create more money for the organization. RICO it is, and I hope the ABIM implodes under the lawsuit.

I am a self employed solo practice Internist entering my 23rd year in practice. I never took the Internal Medicine boards because I viewed them as a racket. It costs thousands of dollars to purchase their “study guide” and take the exam. For me, add the expense of travel to another state with lodging. In my opinion the board covers much esoteric material that practicing physicians would likely never use. And all of this for what I consider to be a meaningless credential; especially when compared to the credential of completing years of experience working up to 120 hours per week in a busy Internal Medicine Residency program. Going forward, there is also no shortage of inexpensive reference material to keep current with medicine. Over these 23 years, despite declining to take the boards, it has been very rare for me to miss a diagnoses. My schedule has been full every day. No patients have ever asked me about board exams. And, I never lost a penny of income for not taking the boards. So my advice to other doctors questioning the usefulness of the boards is this. Tell them to take a hike. You don't need them. And you will be in good company because recently over 19,000 fed up doctors signed protest letters to board exam administrators. And God's speed in this pursuit of justice against the ABIM.

I Just had to register for my 10 year MOC, Found out it will cost $650 and exam length is 630minutes, 10.5hours of torture on the day and several days ,weeks and months prior to that for something that is never useful in to your day to day practice, it is money making scam by ABIM.

MOC is useless. Boards have encouraged insurance companies to require MOC or lose provider status. How did this get so out of hand? Because academicians and board members are out of touch with reality. Who elects board members, and why elect them to positions of power. "Drain the Swamp !"

I truly admire the physicians who are voicing their opinions about this matter. It is vital that this movement expands exponentially! I encourage you to make this the topic of discussion at you next hospital staff meetings, Grand Rounds, ACP meetings, you name it! The unnecessary stress of the MOC has got to be eliminated if physicians are to enjoy practicing medicine. If the MOC has ever given you unnecessary stress, then this is the time to do something about it! Please encourage all your fellow physicians to support this endeavor! Great job Dr. Wes!

As a retired family physician, I have continued to participate in MOC through the ABFM in case I need to return to practice in the next couple of years. I have long felt that board certification is something that is forced on us in because hospitals and insurance companies require it for credentialing. Therefore, most of us need to maintain this credential in order to practice. It is expensive, and an added burden also in time spent on it. In Illinois, we need to acquire 150 hrs of CME yearly for licensure, and AAFP also requires that amount for membership. I think it should be up to us how we get it (like it used to be), we are the ones who know what topics of updating/review we each need. I agree that the periodic examination that is required often contains material that is unrelated to common practice, and sometimes I am learning how to answer the test to satisfy the board, although it may not reflect actual practice in my community. I remember having to answer that first line treatment for pneumonia was PCN at a time when no one I know would have used it. What good is this?

One of my prouder recent moments as a physician occurred as I was reading what you are doing. This year I declined to pay ABPS $1000 which fee merely will motivate them to acknowledge that I am boarded if an "employer" so requests. My ABIM is due in 2022 and I will follow suit. Bravo! Dr. Johnson

Excellent; all boards need to be taken to task on this . MOC amounts to extortion and there is no justification for this. Many diplomates are too afraid to stand up to the boards - we need to be more vocal. And if the useless AMA had any real ability to affect change, it would start with this problem.

Every time I pay my dues, I send a note to the board reminding them that what they are doing is dishonest. You do not pay a fee to maintain your high school diploma or medical school degree. This is fraud - pure and simple. That all boards seem to do it is no excuse.

My hats off to you! After spending much time, money, and angst on the first Board Certification test, I was determined to never do it again--and especially not MOC. What a waste of time and money! The sooner it can be disposed of, the better!

I have just retired after private practice of Cardiology for 25 years. It is wonderful to know that many other docs are challenging MOC. I thought that this was time consuming, expensive and largely irrelevant to my practice. It was very stressful to try to complete the MOC modules and to repeatedly take the requalifying exam every 10 years, getting ever more expensive with the review courses, missing days of work to sit for the exam and study. Hooray that the Establishment is being challenged. For years, I have felt it was unfair and a complicated money-making process.

Great job Dr.Wes, support everyone, I am 65 yrs certified and recertified in cardiology,ABIM created 10 boards in cardiology to makeMore Money. They don’t care about our patients,employees or our families.please support NBPAS. There is no value with ABIM toOur Patients.

Finally somebody is standing up to ABIM. So sick of the stress of taking boards every 10 years when it is so irrelevant to my practice in caring for patients. MOC needs to be disposed in the garbage. This is the cause I will fully support and donate to the funds. Thank you Dr. Wes!

In order to keep my sleep center accredited with the American Academy of Sleep Medicine, I have to have board certification in sleep medicine. I have to take my certifying Neurology exam ($1,400) as well as the subspecialty exam (another $1,400). Our center has to pay $4,000 every 5 years to maintain our accreditation. What a racket!!

I think this is a great step towards oversight of this organization. I am currently not board certified. I'll be honest, I don't test well. But, I am also VERY fortunate and thankful that I am currently working for a company that does not require Board Certification. It has been so frustrating to deal with the perception ABIM has set up that Board Certification is some sort of "gold standard" for physician qualifications.

I'm not saying that I'm the best doctor out there. But, my patients are happy with the care they receive. My management is up to the standards of care. I'm one of the top performers regarding CMS metrics and RVU's...that's another topic of contention.

Prior to working where I am at, it was one big frustration looking for a job. Everyone is excited to talk to me when they look at my CV. They call and speak with me for minutes on end. They would like to set up follow up phone calls and even in person meetings. But, in the end, they ALWAYS look at my board status, and then the discussion literally comes to a halt. Some don't even return my calls. A few days ago, they couldn't wait to follow up with me. But, simply because the ABIM has put this in their heads that Board Certification is what physicians are measured up against, they will not come back to give a second look.

This is what we are up against. So, unless you want to be competitive for a job, you MUST be board certified. Taking a test that has very little real world practicality. This must stop! We've all worked so hard and to be more than a score on a test.

Way over due. Ever internist feels held hostage and prostituted by the ABOM. Who regulates this organization. It self polices. Doctors have virtually no power or input into this dogmatic organization. We know hospital privileges and insurance reimbursement can be tired directly to maintaining certification. Yet if one tries to express their option or complain to ABIM bout their burdensome requirements it essentially goes on deaf ears. They do not follow the input many physicians who have protested for years now without significant change in their stance. It’s time the ABIM goes away and come to terms to the modern day practice of medicine instead of this archaic fraternity like structure. Too many requirements and outside pressures already burden the modern physician . We need an organization that will battle for and with us, not create more burdens and requirements such has useless exams and hoops to jump through that the ABIM has created!

I've been a practicing ophthalmologist for the past 30 years and have been fortunate enough (i.e. old enough) to avoid the every ten year MOC process. I agree that this is essentially useless and a waste of money, time , and energy. However, I'm not so sure there shouldn't be some sort of exam in each of our fields, conducted within the first 1-2 years after residency/fellowship training, to ensure that we are identifying persons who are truly not prepared to practice medicine safely. The exam should be very practical - something anyone who has completed a solid course of training should have no trouble passing. I recall that for our oral boards there were a couple questions we all expected to be asked and all knew that we'd better answer correctly or would fail the exam, since an incorrect answer in these specific settings could have fatal consequences for the patient. I, personally, think this sort of thing is a good idea and perhaps could be addressed in an way that we would all agree upon and support as a matter of patient safety - and something that is not a business proposition for a separate agency. From what I've been hearing, this MOC thing is going to get edgy.

while I am happy to note someone is trying to reduce our costs to saty in practice I am not happy about the use of anti racketering laws ( written about to use against VIOLENT gangs and and criminals) against private citizens or organizations.. while i do no agree with the ABIM way of doing things I do not consider them criminals and using the RICO laws in this fashion is NOT JUST

I am a twice board certified internist who's 10 years ran out in 2016. Having practiced internal medicine for the past 30 years andbeing one of the first Hospitalists in tis country, I decided to go independent and resigned from an employed position and foundedmy own Medical Consulting LLC. and started working as an independent hospitalist. To be successful I got rid of the word "no"from my vocabulary and worked EVERY SINGLE DAY (I mean 365 days a yer on call each of those days) slept when I could and did this for almost 4 years straight. After ending up in th ER with chest pain, I decided I needed a partner. So in the past 3 years I have been working with another independent hospitalist and working every other week. Needless to say I am very very successful now.my income has almost tripled. However working at hospitals taking care of very ill patients, I could not prepare for the boards properly and failed my last board recertfication exam last year. So I suppose after practicing acute care medicine for 30 years I must have somehow forgotten everything - NO? Folks I still work and my patients do very very well as evidenced by very high satisfaction rate among patients I take care and my internist colleagues whose patients I treat in house. I have been sued zero times and have made zero significant mistakes. I always end up fixing the problem correctly the first time, and if I feel even the slightest discomfort then I CONSULT immediately. That is what sub specialists are for. I don't need to know the detail they know.I feel the MOC is totally useless representative of my day to day practice and has ZERO relevance. As for the money spent trying to keep certified - well I am not even gonna go there. I think Al Capone was more forgiving. I will be applying for a certification by the NBPS at this time. No need to enslave myself any further... What do the rest of you think???...

As a grandmothered ABIM & subsp certified doc who has always taken more CME/ read & published more than required - I never realized how onerous these jerks had made this. CME makes sense. This is abuse. Attorneys would put up with having to re-take the BAR exam (with $$$ en route) for about... (dissolves into hilarious giggles).So glad to see these internists fight back!

It's one thing to hold the ABIM accountable for their actions, financially and more, finally after all of these years. But until all the "grandfathered" physicians who never had to retest are finally deprived of their "lifetime" certifications and either test with everyone else or quit practicing, things still are in their biased favor. Lifetime certification should never have been given to them, and the only reason it was done was for financial considerations so that they would go along with the new system being proposed at the time to force all future graduates into a never-ending testing and certification process that benefited the boards. It was just another discriminatory system set up by privileged physicians wanting to control the system and get rewarded by insurance companies and hospitals.

I have to say, that I have enjoyed not responding to the ABPN MOC emails over the last year. I decided to move to NZ to continue my practice. Even though I graduated from MUSC in 1985, did my Psych residency and finshed Duke in 1989, the Medical Council of New Zealand took my almost 30 years of experience as proof that I was a reasonably trained Adult Psychiatrist.Relocated in January of this year, and will not look back.As I recall, being Board Certified was once considered an honor (I received a raise from the SC Department of Mental Health in 97 when I passed), not a requirement to prove you were a trained psychiatrist.Time to stop.....stop paying the fees and demand...yes, DEMAND acountablity from those boards to prove to the practioners as well as the public that Board Certification is an honor, not a priveledge to be paid for.

I am board-certified in clinical pathology and twice-boarded in blood banking/transfusion medicine. The ABP was very late to the party, only instituting time-limited certificates and MOC in 2006.Now there is no expiration date printed on our certificates, it says something similar to board certification requires fulfillment of MOC. So while I can speak to the expense, stress and lost time involved I have not put up with what my beleaguered colleagues in IM have. But I HAVE paid my dues with state boards. I have 8 state licenses in order to be marketable as an independent contractor. I had to make a spreadsheet to keep up with how many hours are due when, what credits are applicable across all state boards and the ABP. Some state boards don't even care what my hours are in (doesn't that defeat the purpose?!) But we have to do it to keep our state licenses. This will be a landmark case that will hopefully level the playing field and allow physicians to do what is most important: heal.

Wes is a hero, and has been waging this fight largely alone. I signed up for NBPAS certification in surgery as soon as he made it available. Unfortunately, the American Board of Surgery pulled a sneaky bait and switch, and eliminated their equally noxious MOC scheme, only to replace it with a marginally less noxious "continuous certification" program which requires taking an open-book test every two years, as well as the same time-consuming record-keeping and documentation requirements -- and oh, by the way, they doubled the fee to $280 per year.

Regardless of whether we are victims of the ABIM or one of the other ABMS boards, we should all support this effort, and all become NBPAS certified. If we can beat the ABIM, then hopefully the victory can be expanded upon to include all of them.

Now my only wish is something like this be done for the American Board of Psychiatry and Neurology. So thankful for what you are doing Dr. Wes. Hopefully, the next fight will behow insurance companies have been bullying us physicians for a long time now.

I was around when MOC began in OB-GYN. Within 10 years there were studies that showed that doctors who had to do MOC were NOT less likely to sued than doctors who did not do MOC yet this expensive and time consuming practice has continued to this day (over 25 years!) Glad to see some doctors finally standing up!

Thank you soooooo much. I am grateful that even as my career as an internist is coming to a close,that those that will follow me and ultimately take care of me in my need for utilization of medical care will not be encumbered with this riduculousness! Thank you and God Bless!

Just recertified and passed. True it was a grueling and rigorous preparation for the MOC, with time lost on all levels for months; true it is expensive; true the test itself did little to test the breadth of my knowledge. While I admit there where many nights I swore at every living thing in the preparation process, I have to admit, I also learned so much! ABIM is corrupt true but the idea to get providers/physicians to stay current with new guidelines, new treatment strategy, new diagnostic protocol/tools, and newer and complete knowledge in previously unknown pathways or ideas IS NOT! Compare your MKSAP booklets today to say 10 years ago or more, you will notice the size and informational difference. Knowledge is not STATIC it is ever changing and growing, we owe it to the patients and community to see that we remain current and thorough. We all knew what we signed up for when we decided on this vocation, a life long studiousness. ABIM may be dead, but something more imposing will demand this of us. My conciliatory view is to amend what is broken and contend with the idea that the process of recertification is a good thing. And we all need some standard to be held to.

"... but the idea to get providers.physicians to stay current with new guidelines, new treatment strategy, new diagnostic protocol/tools, and newer and complete knowledge in previously unknown pathways or ideas IS NOT!"

What relationship do you have with MOC? In my experience, every time this straw man argument you pose is advanced that individual is somehow conflicted with MOC. MOC is not about our "education" or "keeping up." MOC is about our money, coercion, power, and control, and the use of our MOC "data.: As outlined in the amended Complaint, MOC is about age discrimination, unjust enrichment, anti-trust violations (monopoly), and racketeering. This is not about our "education," otherwise there would be independent proof this program (that was falsely marketed) improved patient care safety and care quality.

While I'd like to believe the naiveté and earnestness of you comment, I remain suspect. I've just seen this trick too many times before.

I feel vindicated, I'm an Internist and for decades I've refused to seek ABIM certification. The ABIM and the AMA are gangsters it's about time ABIM is being exposed. Hopefully the AMA will follow down the road of perdition. These self absorbed organizations do nothing but collect fees and dues and do not represent their constituents.

Would lawsuit include other states, other boards/ specialties. I know my board ABPMR has been trying for more than a year to change MOC requirements for exam every 10years but they have not been successful yet

Graduated residency in 2005 and I have never sought Board Certification as I always thought it was a complete sham. We all know that there is absolutely zero evidence that physicians who have a board certification have any better patient outcomes than those who do not. Why in the world would I want to reward this propaganda campaign with my increasingly hard to earn money to receive a certification that doesn't mean anything and will lock me into indentured servitude. Just not happening...

We have identical issues and rebellion against the American Board of Dermatology. BTW, since 96% of derms are successfully re-certified after satisfying all this expense and nonsense, why do we need this process all?

It finally happened what should have happened long time ago. I intentionally quit taking MOC after taking 3 recert exam. It was so humiliating to continue further. I am so glad we have brave colleagues to initiate this movement. Let the truth come and serve doctors. Please tell at least one of your colleague about this.

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About Me

Westby G. Fisher, MD, FACC is a board certified internist, cardiologist, and cardiac electrophysiologist (doctor specializing in heart rhythm disorders) practicing at NorthShore University HealthSystem in Evanston, IL, USA and is a Clinical Associate Professor of Medicine at University of Chicago's Pritzker School of Medicine. He entered the blog-o-sphere in November, 2005.
DISCLAIMER: The opinions expressed in this blog are strictly the those of the author(s) and should not be construed as the opinion(s) or policy(ies) of NorthShore University HealthSystem, nor recommendations for your care or anyone else's. Please seek professional guidance instead.